Higgins v. . Higgins

DeNNY, J. The only question presented on this record for our consideration, is whether- or not the court erred in holding that under the verdict of the jury the plaintiff is entitled to an equitable lien on the land now owned by the defendants; that is, upon land conveyed to J ames Higgins and wife, Matilda Higgins, by J. Will Higgins in exchange for the original tract of land conveyed by the plaintiff to James Higgins. The other exceptions set out in the record are not preserved, as required by Rule 28 of the Rules of Practice in the Supreme Court, 221 N. O., 562, and are to be considered as abandoned. Therefore the defendants are not resisting judgment against them for the sum of $485.00, nor for the future support of the plaintiff, but they contend the facts established by the verdict of the jury constitute nothing more than a personal obligation to support the plaintiff, and are insufficient under the decisions of this Court to support a charge on the land owned by these defendants. In construing a clause in a deed providing for support and maintenance, its legal effect must be determined by a construction of the entire instrument. Marsh v. Marsh, 200 N. C., 746, 158 S. E., 400. Consequently, a collateral agreement not appearing in a deed, in the absence of fraud or mutual mistake, which would warrant a reformation of the instrument, will not support an equitable lien on the premises conveyed for the enforcement of the collateral agreement. *456 Whether or not the provision, “I further agree to keep him in sickness and old age,” is sufficient to constitute a charge on the land described in the original conveyance from the plaintiff to James Higgins, we need not decide, since that question is not presented on this record. However, conceding, hut not deciding, that the provision in the original deed is sufficient to constitute a lien or charge on the land, the grantee had the right to convey the land and to transfer the charge to the subsequent grantee, and the subsequent grantee took with notice of the provision in the original deed. 26 C. J. S., 485, et seq., sec. 150. The deed, dated 17 March, 1925, from J. Will Higgins to James Higgins and wife, Matilda Higgins, as tenants by the entirety, is a warranty deed in fee simple and recites a consideration of $2,000.00, and contains no covenant or condition for the support of John H. Higgins, the plaintiff. On 7 June, 1940, more than 15 years after J ames Higgins and the defendant, Matilda Higgins, obtained the above deed, Matilda Higgins executed a deed to the premises to Ora Lee Willis and her minor son, Sam Willis, and, after the description of the land in said deed, there appears the conditions set out in the statement of facts herein. Those conditions, particularly on the question of support of this plaintiff, are vague, and cannot be held as a covenant for the support of this plaintiff which would constitute a charge on the premises therein conveyed. The verdict of the jury does establish the fact that at the time James Higgins accepted the original deed from John H. Higgins, dated 20 March, 1922, it was understood and agreed that James Higgins “would from time to time, keep and maintain the said J. H. Higgins in sickness and old age”; and further that said obligation was assumed by the defendants. However, the assumption of that obligation by these defendants, in the light of the facts presented on this record, at most, constitute nothing more than a personal obligation on their part. The position of the plaintiff is far less persuasive than that of others in cases where covenants have been held to be personal. Taylor v. Lanier, 7 N. C., 98; Perdue v. Perdue, 124 N. C., 161, 32 S. E., 492; Rieles v. Pope, 129 N. C., 52, 39 S. E., 638; Lumber Co. v. Lumber Co., 153 N. C,, 49, 69 S. E., 929; Bailey v. Land Bank, 217 N. C., 512, 8 S. E. (2d), 614. Courts will guard with jealous care the rights of the aged and infirm who have conveyed their land in the belief that they were making provision for support and maintenance in their declining years. And an examination of the decisions of this Court will disclose a strong and uniform tendency to treat a claim for support and maintenance as a charge on the land, which will follow it into the hands of purchasers, whenever the provision contained in the conveyance will justify such a construction. Laxton v. Tilly, 66 N. c., 327; Helms v. Helms, 135 N. C., 164, 47 S. E., 415; Bailey v. Bailey, 172 N. C., 671, 90 S. E., 803; *457 Marsh v. Marsh, 200 N. C., 746, 158 S. E., 400. Tbe facts in this case, however, do not entitle tbe plaintiff to an equitable lien on tbe land of tbe defendants described in tbe judgment below. Except as herein modified, tbe judgment below is affirmed. Let tbe costs be divided equally between tbe plaintiff and tbe defendants. Modified and affirmed.